46:0066(5)AR - - NY State Council of the ACT and DOD, NG Bureau, NY State Dept. of Military and Naval Affairs - - 1992 FLRAdec AR - - v46 p66



[ v46 p66 ]
46:0066(5)AR
The decision of the Authority follows:


46 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NEW YORK STATE COUNCIL OF THE ASSOCIATION

OF CIVILIAN TECHNICIANS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

NEW YORK STATE DEPARTMENT OF MILITARY

AND NAVAL AFFAIRS

(Agency)

0-AR-2244

DECISION

October 7, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Steven J. Goldsmith filed by the Association of Civilian Technicians on behalf of the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the exceptions.

An employee grieved the filling of a vacant position by the Agency, asserting that the selected employee was both preselected and did not satisfy the qualification requirements for the position. The Arbitrator found that the Agency violated applicable regulations by selecting an unqualified candidate but declined to remove the selected employee from the position.

For the following reasons, we conclude that the failure to remove the selected employee is inconsistent with Federal Personnel Manual (FPM) chapter 335, Appendix A and renders the award deficient. Accordingly, we will modify the award to require the Agency to remove the selected employee from the disputed position. We will also direct the Agency to rerun the selection action.

II. Background and Arbitrator's Award

The Agency posted a vacancy announcement for the position of Logistics Management Specialist, GS-9. As quoted by the Arbitrator, the announcement for the position required the following specialized experience: "'Twenty-four (24) months of experience, and/or training which provides knowledge of formulation, coordination and administration of plans and programs and a factual knowledge of the responsibilities of logistics plans and support functions.'" Award at 3. The Arbitrator also noted that the "Merit Promotion and Placement Plan for New York National Guard Technicians" requires that candidates for a position "'must meet the basic qualifications established for [a] position including any selective placement factors.'" Id. at 4.

The selected employee submitted an application for the position listing experience as a mechanic and a performance appraisal in which he had been rated outstanding in that capacity. The selected employee also attached to his application a lengthy record of his knowledge, skills, and abilities (KSAs) for the position addressing his work experience and training relating to logistics planning.

A staffing specialist who reviewed the applications determined that four candidates, including the selected employee and the grievant, met the minimum qualifications for the position. The staffing specialist reached her determination regarding the selected employee based on the employee's statements regarding his KSAs, rather than his application, noting that the application was based on his employment record as a mechanic. The staffing specialist thereafter submitted the names of the four candidates to the Commander for Technicians, who was the selecting official and in whose work unit the position was located. The Commander certified that the four candidates were eligible for selection to the position.

Prior to the actual selection, the Commander assigned the selected employee to the position of Logistics Management Specialist "on a provisional basis[.]" Id. at 7. The Arbitrator found that the selected employee was the only one of the four certified employees who was willing to take the assignment on a temporary basis. After the Commander chose the selected employee to occupy the position permanently, a grievance was filed. The grievance alleged that the selected employee did not meet the minimum requirements for the position as stated in the vacancy announcement and that he was preselected. The grievant sought as a remedy that the Agency vacate the position, reannounce the position, and select a candidate from a proper eligibility list. In response to the grievance, the Agency maintained that the selected employee was qualified for the position. The grievance was not resolved and was submitted to arbitration.

The parties were unable to agree on a joint submission of issues to the Arbitrator. Consequently, the Arbitrator adopted what he claimed was the Agency's proposed issue as follows:

Did Management violate the Regulations or Rules of Procedure in determining whether [the selected employee] met the basic qualifications for the position of Logistics Management Specialist? If so, what shall be the remedy?

Id. at 1.

The Arbitrator first dismissed the claim that the selected employee had been preselected. The Arbitrator noted that the Commander's first choice was a different employee but that the selected employee was the only one who had volunteered to take the position on a temporary basis.

The Arbitrator then addressed whether the selection and placement action violated rules or regulations. The Arbitrator found that the Agency violated "applicable [r]egulations" in determining that the selected employee met the basic qualifications for the position. Id. at 10. In reaching this conclusion, the Arbitrator found that, while it appeared from the KSAs attached to the selected employee's application that he met the 24-month experience requirement set forth in the vacancy announcement, that "experience was strictly in automotive maintenance and mechanics." Id. at 9-10. The Arbitrator found that "the 'work experience' portion" of the employee's application and unrebutted testimony at the arbitration hearing, including an admission by the selected employee, established that fact. Id. at 9. The Arbitrator also found that the selected employee "at best was puffing in his KSA addendum to the [application]," that he lacked the requisite 24 months of experience called for in the vacancy announcement, and that his selection "did not meet the requirement of the Merit Promotion and Placement Plan . . . ." Id. at 10. The Arbitrator concluded that the selected employee "was not a marginal applicant. He out-and-out just did not qualify." Id. In fact, the Arbitrator noted the Commander's testimony at the arbitration hearing that "in actuality 'none of the four' individuals declared eligible had such experience." Id. at 8.

Despite finding a violation of "applicable [r]egulations" the Arbitrator rejected the request that the Agency remove the incumbent from the improperly filled position, reannounce the position, and select a candidate from a proper eligibility list. Id. at 10. In so doing, the Arbitrator noted the Agency's testimony that "[it] needs someone on that job" and concluded "that there are no other candidates." Id. at 11. According to the Arbitrator, the grievant "stated that he [did] not want the job[.]" Id. at 2. The Arbitrator also found that the record established that the selected employee "is performing well as a Logistics Management Technician[,]" and "is an outstanding employee" in that position. Id. at 10. The Arbitrator stated that the Union did not "offer any reasons or justification for the relief sought[,]" and that it did not "appear[] that . . . the [g]rievant nor any other employee [had] been damaged by [the] selection[.]" Id. at 10-11. Therefore, the Arbitrator concluded that "[i]t would be unjust under these circumstances to direct that the position be vacated and the Unit left short-handed." Id. at 11.

III. Union's Exceptions

The Union states that the award is deficient because it is contrary to rule and regulation. Specifically, the Union maintains that the Arbitrator's denial of its requested remedy, that the Agency vacate the improperly filled position, "is a direct violation" of FPM chapter 335, Appendix A, section A-4(b)(1)(b), Agency regulation TPR-335, the State Merit Promotion Plan DMNA Pamphlet 690-4, and the merit promotion plan contained in the parties' negotiated agreement. Exceptions at 5.

The Union's arguments center around its claim that the selected employee did not meet the requirements of having 24 months of experience for the position of Logistics Management Specialist as provided in the Agency's regulations. The Union adds that in order for the selected employee to be retained in the position, there must be a showing that the employee would have been selected had proper procedures been followed at the time of the selection, a showing that the promotion can be corrected to conform to applicable regulatory requirements, or a finding that the employee presently meets all the requirements for the position. The Union also states that if an arbitrator finds that a selection action did not conform to applicable legal or regulatory requirements, or to those set forth in a collective bargaining agreement, the arbitrator may order that the action be rerun.

The Union also asserts that "[t]he award evidences a manifest disregard for the [parties' negotiated] agreement and does not represent a plausible interpretation of the agreement." Id. The Union states that by permitting an unqualified applicant to be selected over qualified applicants, the award provides no protection against "arbitrary and capricious selections." Id.

In addition, the Union maintains that the award is deficient because it is based on a series of nonfacts and that the central facts underlying the Arbitrator's denial of the requested remedy are erroneous, but for which the Arbitrator would have reached a different conclusion. The nonfacts adverted to relate to the Arbitrator's findings that the grievant did not wish to be placed in the vacant position, that there were no other qualified applicants for the position, that no harm was suffered as a result of the selection, and that the Union had not justified the remedy requested. The Union adds that the Arbitrator misidentified certain employees in his discussion and made other misstatements of facts. The Union also claims that the Arbitrator erroneously expressed concern that if he directed the Agency to vacate the position the unit would be left short-handed.

A. Analysis and Conclusions

We will find an award deficient when it is contrary to law, rule, or regulation, or on grounds similar to those applied by courts in private sector labor relations cases. For the following reasons, we find that to the extent the award fails to remove the incumbent employee from the disputed position, the award is inconsistent with FPM chapter 335, Appendix A.(*) Accordingly, we will modify the award to direct that the incumbent employee be removed.

The provisions of FPM chapter 335 govern promotion and internal placement. Appendix A to that chapter contains, among other things, the corrective actions that may be taken for a failure to adhere to agency promotion plans. As defined in section A-4(a)(2)(a) of Appendix A, "[a] procedural violation occurs when a promotion action does not conform to the requirements of the applicable promotion plan." In this case, the Arbitrator found that the selection action did not meet the requirements of the Agency's merit promotion plan because the selected employee did not have the requisite experience for the position. While the Arbitrator did not specifically address the applicability of Appendix A to his decision, he found that the Agency had violated "applicable [r]egulations." Award at 10. It is apparent, from a reading of the award and the relevant provisions of the FPM, that the Agency committed a procedural violation of the FPM because its selection action did not conform with a requirement contained in its merit promotion plan.

Despite his finding of a violation, the Arbitrator rejected the Union's request that the incumbent be removed from the position. The Arbitrator found that the incumbent was performing well in his position and that there were no other candidates who could satisfy the Agency's stated need for someone to occupy the position. Appendix A authorizes the retention of an incumbent employee pending action to correct a procedural violation, but only if certain conditions are satisfied. Specifically, under section A-4(b)(1)(b), an employee may be retained in a position only if reconstruction of the promotion action demonstrates that the employee could have been selected had the proper procedures been followed at the time of the selection action or if the Office of Personnel Management (OPM) office with geographic jurisdiction approves the retention. In addition, section A-4(a) requires that corrective actions be determined on the basis of all the facts presented, with due regard to the circumstances surrounding the violation and the equitable and legal rights of the parties involved, including the interests of the Government.

In interpreting these provisions, the Authority consistently has held that where an arbitrator determines that an agency violated proper procedures in filling a vacant position, the incumbent employee is entitled to be retained in the position pending the corrective action unless it is specifically determined that the incumbent originally could not have been properly selected. See, for example, U.S. Department of the Army Headquarters, U.S. Army Garrison, Fort Sam Houston, Texas and National Federation of Federal Employees, Local 28, 45 FLRA 879, 881-82 (1992) and cases cited therein. In this case, the Arbitrator determined that the selected employee "was not a marginal applicant. He out-and-out just did not qualify." Award at 10. This is tantamount to a finding that the employee originally could not have been selected had the proper procedures of the Agency's merit promotion plan been followed. Thus, there is no basis, under the applicable FPM requirements, on which to retain the incumbent employee. Consequently, to the extent the award failed to remove that employee from the disputed position, the award is deficient as contrary to FPM chapter 335, Appendix A.

This case is distinguishable from U.S. Department of Defense, Army Chemical and Military Police Centers, Fort McClellan, Alabama and American Federation of Government Employees, Local 1941, 39 FLRA 457 (1991) and U.S. Department of Health and Human Services, Social Security Administration, San Francisco Region and American Federation of Government Employees, Council 147, 38 FLRA 1183 (1990). In each of those cases, the Authority determined that an award denying the union's request to remove an incumbent from a disputed position was based on the arbitrator's finding that the incumbent could originally have been properly selected. For that reason, the selection actions were not inconsistent with FPM chapter 335, Appendix A. In the instant case, by contrast, the Arbitrator determined that at the time of the selection action the selected employee did not meet the qualification requirements for the disputed position. Therefore, the record establishes that the selected employee originally could not have been properly selected.

Accordingly, we will modify the award and direct that the Agency remove the incumbent employee from the disputed position. In so doing, the Agency is advised to follow the corrective action requirements set forth in Appendix A that apply when an employee is not retained in a position, as well as any other applicable legal and regulatory requirements. In addition, and assuming that the Agency elects to fill the vacated position, we will order the Agency to rerun the selection action for the position of Logistics Management Specialist, GS-9. Such an order is consistent with our well established precedent that where a selection action does not conform to applicable legal requirements, an order directing that the action be rerun is appropriate. See, for example, U.S. Small Business Administration, Atlanta, Georgia and American Federation of Government Employees, Local 3906, 37 FLRA 137, 143 (1990). Of course, the Agency is free to exercise its right not to fill the position, in which case there would be no obligation to rerun the selection action.

In light of our decision, there is no need to consider the Union's remaining exceptions.

V. Decision

The award is modified to require the Agency to remove the selected employee from the disputed position. The Agency will rerun the selection action for the position of Logistics Management Specialist, GS-9. The rerunning of the selection action, and the actions related to the incumbent employee, must conform fully with controlling law and regulation and the parties' collective bargaining agreement.

APPENDIX

FPM Chapter 335, Appendix A, A-4a provides, in relevant part:

A-4. CORRECTIVE ACTIONS

a. General. (1) 15.1 Alternative actions. Failure to adhere strictly to laws, OPM regulations and instructions, agency policies and guidelines, and agency promotion plans is to be rectified promptly by the OPM or the agency involved. Action to rectify a violation may involve an employee who was erroneously promoted, an employee or employees who were not promoted or considered because of the violation, or officials who caused or sanctioned the violation. It also may involve correction of program deficiencies. The nature and extent of actions to be taken in any case have to be determined on the basis of all the facts in the case, with due regard to the circumstances surrounding the violation, to the equitable and legal rights of the parties concerned, and to the interests of the Government.

(2) Types of promotion violations.

(a) Procedural. A procedural violation occurs when a promotion action does not conform to the requirements of the applicable promotion plan. . . .

. . . .

(b) Action involving erroneously promoted employee

(1) Retention in position.

(a) General. The general rule is that an erroneously promoted employee may be retained in the position only if the promotion action can be corrected to conform essentially to all OPM and agency requirements as of the date the action was taken. As indicated above, however, corrective action decisions must be tempered by all the facts surrounding the violation. Under some conditions, it may be permissible to retain the employee in the position even when the general rule does not apply.

(b) Procedural violation. In this kind of violation, an employee may be retained in the position only if--

(i) Reconstruction of the promotion action shows that he or she could have been selected had the proper procedures been followed at the time the action was taken; or

(ii) The OPM office (regional or central) with geographic jurisdiction gives approval.

. . . .

(2) Corrective action. If an employee is not retained in the position, he or she must be returned to his or her former position or placed in another position for which he or she is qualified. If the latter position is in a higher grade or level than the position he or she was in prior to the erroneous promotion, the position change is made under competitive promotion procedures as though the employee were still serving at the grade or level from which erroneously promoted.




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